No Trademark Protection for ASPIRINA — Too Close to Generic Aspirin

In re Bayer (Fed. Cir. 2007)

The Trademark Office Appeal Board (TTAB) found the mark ASPIRINA merely descriptive of analgesics. On appeal to the CAFC, Judge Moore filed a majority opinion agreeing that the TTAB had reached the critical ‘substantial evidence’ threshold and thus affirmed.

The Board concluded that consumers will view ASPIRINA as merely a variation or misspelling of the generic term aspirin and determined that the terms are close in sound, appearance, and meaning. The Board also found that ASPIRINA immediately conveys the impression that Bayer’s analgesics are aspirin-based products. . . .

Under the deferential substantial evidence standard of review, the Board’s decision must be affirmed. Where two different conclusions may be warranted based on the evidence of record, the Board’s decision to favor one conclusion over the other is the type of decision that must be sustained by this court as supported by substantial evidence.

In particular, the CAFC noted that ASPIRINA looks and sounds like aspirin – the same basic product. In addition, a number of online dictionaries show that ASPIRINA is a common spanish-language translation for aspirin.

Judge Newman filed a dissent, arguing that a mark’s closeness to a generic word is not determinative of its trademark status. Rather, according to Newman, the Court should examine whether ASPIRINA serves to associate the goods with their source.

  • Of note — the majority gave no weight to the fact that ASPIRINA has been registered in 34 other countries. Judge Newman would have given weight to that international business information.

36 thoughts on “No Trademark Protection for ASPIRINA — Too Close to Generic Aspirin

  1. Pharma ads are a pet peeve of mine.

    Bayer’s TV commercial states that doctors were asked “Which would you want to have with you as your only medication on a desert island, Bayer, Tylenol or Motrin?” A doctor might reasonably respond “Bayer” because aspirin has some uses (e.g., blood thinner)that are not provided by acetaminophen (e.g. Tylenol brand) or ibuprophen (e.g. Motrin brand).

    Bayer then touts this as proving the superiority of *Bayer’s* aspirin products, but all that it shows in fact is that aspirin *from any manufacturer* is a very useful medicine.

  2. I’m old enough to remember that too, Malcolm. In fact, I suspect that the BAYER house mark became much more valuable because of ASPIRIN becoming generic. Had that not happened, I wonder if the BAYER mark would have the same high level of recognition as it does today. It seems to me that most pharmaceutical companies rely much more heavily on individual product line brands, rather than their house brand, particularly for OTC products. Since that was not possible in the case of aspirin, the BAYER house mark became much more recognized than other pharma house marks. In fact, that high brand recognition is why Bayer is using it’s house mark on non-pharmaceutical consumer goods (e.g., BAYER ADVANCED lawn care products).

  3. Don’t know why I find all of this interesting, but here is the information I found with respect to The Bayer Co., Inc. not being owned by Bayer AG:

    “On April 6, 1917,10 the United States declared war on Germany. Pursuant to the provisions of the Trading with the Enemy Act, the Alien Property Custodian classified The Bayer Co., Inc. of New York as an enemy-controlled corporation. Hence, the Alien Property Custodian seized its assets about the early part of 1918. Between December 1918 and January 1919, all the assets of The Bayer Co., Inc. of New York were sold by the Alien Property Custodian to Sterling Drug, Inc. for the sum of US $5,310,000.00. The Bayer Co., Inc. of New York then became a subsidiary of Sterling Drug, Inc. Winthrop Chemical Co., Inc. was later organized as a new subsidiary of Sterling Drug, Inc. to manufacture and sell the physicians’ drugs which had been acquired” by the purchase of the Bayer Co., Inc. Winthrop’s operation was evidently hampered because ‘the Germans had kept manufacturing processes secret, so that the manufacture of physicians’ drugs on a commercial scale became an almost insoluble problem.11″

    More can be found at: link to lawphil.net (a 1969 decision from the Supreme Court of The Philippines)

    At some point, I think that Sterling changed the name or got rid of its Bayer Co., Inc. subsidiary. However, they continued to use the BAYER trademark for aspirin as well as a variety of other products (some of which were not pharmaceuticals). Bayer AG reestablished a presence in the U.S. in 1978 when they purchased Miles Laboratories and Cutter Laboratories (at least according to Wiki). In 1983, Bayer AG filed an application to register BAYER in the U.S. for industrial chemicals. I suspect that a disagreement between Bayer AG and Sterling ensued, since Sterling and Bayer entered into some an agreement in 1986 which allowed Bayer AG to use the BAYER mark on certain products in the U.S. – but not for consumer or pharmaceutical products. I do not know when Bayer AG’s U.S. subsidiary began operating under the Bayer name. In any event, it was not until 1994 that Bayer AG reacquired the trademark rights in BAYER for pharmaceuticals.

  4. I grew up in the post-trademark aspirin era but distinctly recall family members being told to “take some Bayer” to cure a headache. And I still equate the Bayer brand name with aspirin (though I wouldn’t hesitate to buy a generic brand if it was cheaper).

  5. They spent 1 billion to get the name in the US. Always known to misappropriate the money and the Bayer Corp was indeed part of Bayer AG.

  6. Regarding heroin, I found this at answers.com:

    Bayer would name the substance “heroin”, probably from the word heroisch, German for heroic, because in field studies people using the medicine felt “heroic”.

    From 1898 through to 1910 heroin was marketed as a non-addictive morphine substitute and cough medicine for children. Bayer marketed heroin as a cure for morphine addiction before it was discovered that heroin is converted to morphine when metabolized in the liver. The company was somewhat embarrassed by this new finding and it became a historical blunder for Bayer.[7]

    As with aspirin, Bayer lost some of its trademark rights to heroin following the German defeat in World War I.

    Something tells me that Bayer may not have been as upset about losing its trademark rights in HEROIN as they were with ASPIRIN. It is ironic to note that a Bayer chemist also invented methadone – which is used to treat addicts recovering from a heroin addiction. Go figure.

    It is also interesting to note that Bayer AG did not reacquire the BAYER trademark in the U.S. until 1994. After WWI, Bayer’s assets in the U.S. were confiscated and the BAYER trademark was purchased by Sterling Drug. Presumably this included the ASPIRIN trademark rights, so it may not necessarily be accurate to say that ASPIRIN became generic as a direct result of the U.S. government confiscating the assets of Bayer AG. Bayer AG did not reacquire the BAYER mark in the U.S. until 1994 (although I believe that Bayer aspirin was sold in the U.S. by The Bayer Co. – which was not part of Bayer AG).

  7. BTW, Heroin (also an invention of Bayer chemist Felix Hoffmann, and originally the most successful painkiller) was also once a Bayer trademark. I don’t think they’ll try to recover that one, though…

  8. “Aspirin”, “Aspirine” (in French-speaking countries) and “Aspirina” (in Spanish-, Portuguese- and Italian-speaking countries) are registered trademarks in most countries since the turn of the XIX century. However, due to WWI, Bayer’s assets, including its patents and trademarks, were seized in France and the US, the two countries where “aspirin” ultimately became a generic name. Maybe because of that historic loss (and because brand-name Aspirin is probably one of its biggest income generators), Bayer is extremely aggressive in defending its trademark in the rest of the world. It’s also associated to a very distinctive white and green package. Coming from a country where Aspirin is a Bayer trademark, I remembered being extremely surprised to find it as a generic in France…

  9. For further evidence of why Bayer recently introduced ASPIRINA in the U.S….

    I noticed that the FAQ for ASPIRINA includes the following (link to aspirinaus.com):

    Is Aspirina sold in the United States the same as is sold in other countries?
    Yes, Aspirina tablets in the US have the same active ingredient as Aspirina tablets in other countries. The brand name for Aspirina in other countries include Aspirina Adulto, Aspirina Rapido, and Aspirin Tablets.

    Their website also states that ASPIRINA is sold regionally in the U.S. In other words, you’ll probably find it in Texas, southern California, Arizona, New Mexico, etc., but probably not in Minnesota. See link to aspirinaus.com

  10. Thilo – I suspect that what Bayer was trying to do was extend its ASPIRINA mark into the U.S., particularly within the Hispanic population, rather than resurrect some of its ASPIRIN trademark rights. The ASPIRINA mark was adopted by Bayer around the turn of the century when aspirin was first marketed by Bayer (as I mentioned, the ASPIRINA mark was registered in Mexico in 1908). More than likely, ASPIRINA was used in Spanish-speaking countries instead of the name ASPIRIN. For over 100 years, ASPIRINA has been used in Spanish-speaking countries as a trademark for Bayer’s acetyl salicylic acid products. Given demographic changes in the U.S. and other factors, Bayer almost certainly decided that it made sense to market ASPIRINA in the U.S. – particularly targeting Hispanic consumers. The trademark application in question was filed in 2003 (I think), and was not based on actual use in the U.S. Although Bayer is now using the ASPIRINA mark in the U.S., I believe that only started in the last 2 years or so. They figured that there were a lot of Hispanics in the U.S. that would recognize the ASPIRINA brand from their homelands or perhaps for other reasons. The world is a much smaller place today, so there really was some level of goodwill associated with the ASPIRINA name before it was ever used in the U.S. marketplace.

    So Bayer was not trying to resurrect some of its ASPIRIN trademark rights in the U.S. – rather, they wanted to use the existing goodwill (i.e., brand recognition) associated with the ASPIRINA name in the U.S. and develop it further. For proof, look no further than Bayer’s ASPIRINA U.S. website at: link to aspirinaus.com. The picture on the front page is obviously of a Hispanic family, and there is even Spanixh text on that page (along with a link to the Spanish version of the website). Compare that to link to bayeraspirin.com – this one has no Spanish text nor a link to a Spanish language version. It would also make no sense for Bayer to try and resurrect any ASPIRIN trademark rights in the U.S.

  11. I have just a few comments:

    1. See John Welch’s commentary on this case: link to thettablog.blogspot.com

    2. “COW’S MILK-O”? If you were to register this mark for milk, you would undoubtedly have to disclaim “COW’S MILK” and there goes the infringement claim against someone using the generic term “COW’S MILK” for milk. The example is not a good one.

    3. It is quite obvious to me that Bayer is valiantly attempting to resurrect at least some of its ASPIRIN trademark rights (note, for example, that ASPIRIN is a registered mark in Germany, Bayer’s home country, and in numerous other countries). The entire problem really arose out of the completely illegal misappropriation of the mark during WW1, which robbed Bayer of its ability to take appropriate measures to prevent the mark from becoming generic in the first place. They are still paying the price for that miscarriage of justice!

    4. Most patent lawyers should stay as far away from trademark law as they can (I’m speaking from bitter experience here). There are notable exceptions to this rule, but generally speaking “stick to what you know”!

  12. “The reason will become evident when I try to sell a bottle of Cow’s Milk, labeled as such, and the “producer” tries to shut me down for infringing his/her mark.”

    Fair point.

  13. “Right, but if a marketing company does its job so well that consumers associate “Cow’s Milk-O” with a particular producer and aren’t confused about it, then I see no good reason why the producer shouldn’t be entitled to a trademark.”

    The reason will become evident when I try to sell a bottle of Cow’s Milk, labeled as such, and the “producer” tries to shut me down for infringing his/her mark.

    Trademark law rests in large part on the fiction that corporations have a “right” to keep consumers thinking about their product in a certain way, just because they spent a lot of money on advertisements.

  14. “You also wrote that “giving producers of goods incentives to invest “Madison avenue knowhow and money” is part of the purpose of trademark law.” Depending on what you are talking about, this is either wrong or trivially circular. The purpose of trademark law is not to encourage producers to invest money in advertising. Producers *may* need to invest money to acquire a valid trademark, but that is not the purpose of the law.”

    Right, but if a marketing company does its job so well that consumers associate “Cow’s Milk-O” with a particular producer and aren’t confused about it, then I see no good reason why the producer shouldn’t be entitled to a trademark.

    Also, I said “part of the purpose,” not the entire purpose. The purpose of trademark law is to protect consumers. The way the purpose is implemented, though, is by giving quasi-property rights to producerss, where the strength of those rights depends on how useful the mark is in telling the consumer where the goods came from.

  15. MeToo:

    Your comment was so understood. My redaction was to reflect long experience dealing with all attorneys (and particularly those in general practice) who fancy themselves as TM experts. Whenever I meet such experts I let slip the question “Might you have a copy of the most recent TMEP so that I can check something real quick?) In over 90% of the cases I receive a quizzical (SP?) look, and then asked “What is a TMEP?”

    BTW, these same attorneys can often be found touting their IP expertise over the televison, radio and print ads. “We can handle all your IP needs. We do TMs, copyrights, NDAs and licensing.”

    ‘Nuff said.

  16. metoo,

    just to clarify, the comments were in response to ‘Just a Patent Attorney’s info and not on the case that is being discussed:)

  17. metoo,

    just to clarify, the comments were in response to ‘Just a Patent Attorney’s info and not on the case that is being discussed:)

  18. “This is all fundamental trademark law – which most patent attorneys don’t understand as well as they think they do (despite what they say or think).”

    I would delete the word “patent”, in which case I believe the quote would be more accurate.

  19. Exploiting loopholes in the law??? What are you talking about? This is all fundamental trademark law – which most patent attorneys don’t understand as well as they think they do (despite what they say or think).

    ASPIRINA was deemed to be merely descriptive – hence, no federal registration without proof of secondary meaning. But to suggest that there is something wrong with the thought of ASPIRINA someday becoming a federally registered trademark is nonsense. Heck, even after this CAFC decision, ASPIRINA could be put on the supplemental register (i.e., become federally registered, albeit with limited benefits). In fact, during oral argument at the TTAB, Bayer asked for remand so that they could amend the application to be one for the supplemental register. The TTAB refused – not because the mark could not be put on the supplemental register, but rather because Bayer raised the issue too late in the process.

  20. Is there a better way of exploiting loopholes in the law? Power of convincing a handful cannot be underestimated. Next time someone suffers a severe headache, try offering ASPIRINA, but not without checking with the sufferer first. Well, reply that you may receive could be – sounds like Aspirin. May I have one please?

  21. “ASPIRINPLUS, ASPIRINWATER” are not registered. Aspirinplus is under opposition and Aspirinwater has a pending office action.

    Aspirin 911 is registered, but ASPIRIN has been disclaimed.

  22. And, if Newman is right, I should have already filed my Intent to Use applications of BEERA, BEERO and BEERY for malt beverages.

  23. 1. Aspirina comprises 500mg tablets with aspirin as its active ingredient.*

    2. Aspirina is sold in drug stores and other retail establishments throughout the US.*

    *See: link to aspirinaus.com

    Whether or not adoption of Aspirina was a wise choice is obviously not my call…that is the province of Bayer’s marketing group, just as is the case with every other company adopting a mark to identify its products in the marketplace.

    Now, if you will please excuse me, I have to finish my application for registration on the Principal Register of the mark “Law Officea” as a service mark for legal services. Of course, I will disclaim “law” whenever used apart from the mark.

    BTW, in “clearing” the mark I saved time and money by by-passing T&T, using instead what now seems to be the TM/SM authoritative source…Google.

  24. Well, in order for anyone to obtain trademark rights in the word BEER, it would have to lose its genericness. And that’s the key difference – the word BEER is generic for beer (it is the common name for the product). A generic term cannot be protected as a trademark. A word (or phrase) that is merely descriptive, however, can be protected as a trademark if secondary meaning is established (i.e., over time, the word or phrase becomes a source identifier rather than merely descriptive). ASPIRINA is, at most, merely descriptive of aspirin – it is not generic. Thus, Bayer may still be able to protect ASPIRINA as a trademark in the U.S. if it can establish secondary meaning – a process that often takes several years to play out.

    Is it theoretically possible for a company to obtain trademark rights in the word BEER for a malt beverage product in 2012? Yes, it is theoretically possible. However, I sure hope that does not happen, since it would likely require that the product disappear from the face of the earth to the point that it is no longer used as the generic term for a certain type of malt beverage. While I do not know of any examples off the top of my head, there are probably some existing trademarks that once may have been considered to be generic. But that process would likely take a decade or more (depending on how widespread the generic meaning of particular word was known).

  25. “Judge Newman is correct that the determining factor for purposes of registrability is whether or not a mark is a source identifier – not how close a particular mark might be to a generic term for the product.”

    *sigh* Let’s put it this way: is it theoretically possible for a company in 2012 for a company to trademark the term “beer” for their product (beer)?

    Is so, what are the circumstances? If not, why not?

    Please refer to your quote above when answering the question.

    “although Judge Newman’s dissent includes a few correct statements of the law, it is greatly lacking in substance (and in some instances, is incorrect on the law).”

    Blasphemy!!!!!!!!!! /Newman worship off

  26. Almost forgot…to answer Malcolm’s question, ASPIRINA has been registered in Mexico since 1908. It would be useful if you actually read the case before commenting about it, since the CAFC opinion mentions this fact (which is largely irrelevant). It is also registered in Bolivia, Chile, Columbine, Dominican Republic, Ecuador, Guatemala, Honduras, Nicaragua, Peru, El Salvador, Spain and Uruguay.

  27. Malcolm – Hate to say this, but you are wrong (stick to what you know). Judge Newman is correct that the determining factor for purposes of registrability is whether or not a mark is a source identifier – not how close a particular mark might be to a generic term for the product. For fanciful, arbitrary and suggestive marks, no proof of status as a source identifier is required prior to registration. For descriptive marks, however, registration (on the principal registry) requires proof of secondary meaning – i.e., proof that the mark indeed serves as a source identifier.

    Where Newman strays, however, is when she characterizes the majority opinion as holding the word ASPIRINA as being generic. Neither the majority nor the TTAB held that ASPIRINA is generic. Rather, the TTAB held, and the CAFC affirmed, that ASPIRINA is merely descriptive. Thus, once Bayer begins using the mark in the U.S. (which I do not believe they have done), at some point they may be able to establish the necessary secondary meaning and obtain registration. Indeed, they could spend money on Madison Avenue know-how to establish a link in the mind of consumers between the word ASPIRINA and an analgesic product sold by Bayer. That’s exactly how trademark protection works – trademark rights in merely descriptive words can clearly be established over time.

    As for your statement that Bayer could afford to come up with something more palatable, so what? There are a myriad of ways in which trademarks are developed. And if Bayer chooses to use the word ASPIRINA and undertake to develop the necessary secondary meaning to protect it as a trademark, then there’s nothing wrong with that. In fact, if they so enough marketing to establish secondary meaning, then the underlying purpose of trademark law (preventing consumer confusion) would be served by protecting ASPIRINA as a trademark. If Bayer is successful, they won’t be able to prevent anyone from using the word ASPIRIN in this country, and they will probably have a hard time preventing anyone from using any other variation of ASPIRIN. In other words, the ASPIRINA mark would be pretty weak when used for aspirin (yes, the product is aspirin – nothing else).

    Bottom line – seems to me that the TTAB (and the CAFC) probably got it right, particularly since there is nothing in the opinion which even remotely supports a finding of secondary meaning. More than likely, this is simply because the mark had not yet been used in the U.S. at the time the application was filed. In fact, although Judge Newman’s dissent includes a few correct statements of the law, it is greatly lacking in substance (and in some instances, is incorrect on the law).

  28. “This is clearly incorrect.”

    No, it’s not. I’ll try again to explain the simple error you and Judge Newman are making.

    If “a mark’s closeness to a generic word is not determinative of its trademark status” then how do we determine trademark status? Newman says that the determining issue is whether the mark “serves to associate the goods with their source.”

    It’s a well-known fact that human beings can be trained to “associate goods with a source” through repetitive advertising.

    My statement that “a company could trademark any generic term [by spending] money and Madison Ave know-how to get folks to “associate the goods with their source” is little more than a statement of Newman’s bizarre “test.”

    You also wrote that “giving producers of goods incentives to invest “Madison avenue knowhow and money” is part of the purpose of trademark law.” Depending on what you are talking about, this is either wrong or trivially circular. The purpose of trademark law is not to encourage producers to invest money in advertising. Producers *may* need to invest money to acquire a valid trademark, but that is not the purpose of the law.

    As Michael S. noted above, the issue here is that Bayer wants to call their non-aspirin product “Aspirina”. They might as well be selling soy milk under the name Cow’s Milk-O.

    The purpose of trademark law is to protect consumers from confusion. This case was a slam dunk.

    As for the question, “One has to wonder just how many letters Bayer would have to change to make a colorable imitation of Aspirina registerable on the Principal Register? One letter? Two letters? More?” I question the premise. Why does one have to wonder? Bayer is a gigantic multinational corporation. They want to trademark Aspirina because it readily evokes analgesic aspirin-like effects in the minds of consumers. But there are a hundreds of labels that can achieve that goal without confusing consumers. Nobody needs to hire anyone from Madison Avenue to come up with them.

  29. “This is clearly incorrect.”

    No, it’s not. I’ll try again to explain the simple error you and Judge Newman are making.

    If “a mark’s closeness to a generic word is not determinative of its trademark status” then how do we determine trademark status? Newman says that the determining issue is whether the mark “serves to associate the goods with their source.”

    It’s a well-known fact that human beings can be trained to “associate goods with a source” through repetitive advertising.

    My statement that “a company could trademark any generic term [by spending] money and Madison Ave know-how to get folks to “associate the goods with their source” is little more than a statement of Newman’s bizarre “test.”

    You also wrote that “giving producers of goods incentives to invest “Madison avenue knowhow and money” is part of the purpose of trademark law.” Depending on what you are talking about, this is either wrong or trivially circular. The purpose of trademark law is not to encourage producers to invest money in advertising. Producers *may* need to invest money to acquire a valid trademark, but that is not the purpose of the law.

    As Michael S. noted above, the issue here is that Bayer wants to call their non-aspirin product “Aspirina”. They might as well be selling soy milk under the name Cow’s Milk-O.

    The purpose of trademark law is to protect consumers from confusion. This case was a slam dunk.

    As for the question, “One has to wonder just how many letters Bayer would have to change to make a colorable imitation of Aspirina registerable on the Principal Register? One letter? Two letters? More?” I question the premise. Why does one have to wonder? Bayer is a gigantic multinational corporation. They want to trademark Aspirina because it readily evokes analgesic aspirin-like effects in the minds of consumers. But there are a hundreds of labels that can achieve that goal without confusing consumers. Nobody needs to hire anyone from Madison Avenue to come up with them.

  30. “The Board also found that ASPIRINA immediately conveys the impression that Bayer’s analgesics are aspirin-based products….”

    That alone would be evidence substantial enough for me to defer to the TTAB on public policy grounds given that Bayer’s apps are for analgesics, not aspirin-based analgesics.

  31. Alan McD,

    There are many patent attorneys (and I am among them) who believe Newman is the only sensible one of the lot. On the whole, the CAFC gets a lot of cases wrong, but Newman ordinarily does not. When she dissents, it’s for good reason. And her opinions aren’t ludicrous, like some of the others.

  32. If anyone thinks it’s a close call, then the majority is right because of the deferential standard of review.

    Malcolm Mooney writes: “Weird. If we lived in Judge Newman’s world, a company could trademark any generic term. All it takes is money and Madison Ave know-how to get folks to ‘associate the goods with their source.’”

    This is clearly incorrect. Judge Newman doesn’t concede that “aspirina” is generic. She argues (convincingly, in my view) that it isn’t. At p.4 of her dissent, she rattles off a list of several other trademarks that are one or two letters off of generic words, some of which have survived litigation.

    Also, giving producers of goods incentives to invest “Madison avenue knowhow and money” is part of the purpose of trademark law. By creating an association in the minds of consumers between certain goods and their source, the producer puts its reputation on the line when it sells those goods, and the consumer knows what he’s getting. If the mark isn’t generic, this is good policy.

  33. Until about 1918 Aspirin was a registered trademark of Bayer. Germany losing WWI spelled doom for the trademark, and it was subsequently transferred (perhaps “stolen” is more apt) to Sterling, later sold to Kodak, and then transferred to yet another drug company. Somewhere along the way the term became so ubiquitious that the word “generic” reared its ugly head, even though the generic description of aspirin had long been, and still is, ASA (aceta…acid).

    Quibble all you want about the term, but keep in mind that genericness was not before the court. The basis for the PTO denying registration was descriptiveness, a class that is still registerable on the Supplemental Register.

    One has to wonder just how many letters Bayer would have to change to make a colorable imitation of Aspirina registerable on the Principal Register? One letter? Two letters? More?

    Deride Judge Newman’s opinions all you want, but the fact remains that at least she understands the purpose of trademark law, what is a generic term and what is not, and that the term “Aspirina”, while similar to the term aspirin, is not a term in common useage within the US.

    Based upon what was actually before the court, I would expect Bayer to apply for registration on the Supplemental Register, at which time the likely reaction by the PTO will be to characterize the term as generic. Now that will be an interesting case to follow as it wends through the registration process.

  34. J. Newman’s dissent looks good to me after a quick read.

    Malcolm wrote: “If we lived in Judge Newman’s world, a company could trademark any generic term”.

    Can you point to any evidence on the record that “aspirina” is in fact a generic term? Even the flawed maority found that it was just “the equivalent of the generic English term”, see p14. A finding I might add that seems to be against the evidence presented. The majority seem to have engaged in some rather illogical thinking, alone the lines of ‘aspirin is generic “in English”, and instances of usage in foreign-language articles referring to aspirin , without noting it is a registered trademark refer to generic analgesics’.

    The problem with this is the first part. Aspirin my be generic – but only in the US. Elsewhere it is not generic. When a non-US source talks about aspirin, it can by no means be concluded that the source is referring to a generic analgesic; quite the contrary.

    Regards, Luke

  35. “Of note — the majority gave no weight to the fact that ASPIRINA has been registered in 34 other countries.”

    As the ignoble Tony Snow would say, 34 is “just a number.” But I wonder if that number includes Spain and Mexico?

    “Judge Newman filed a dissent, arguing that a mark’s closeness to a generic word is not determinative of its trademark status. Rather, according to Newman, the Court should examine whether ASPIRINA serves to associate the goods with their source.”

    Weird. If we lived in Judge Newman’s world, a company could trademark any generic term. All it takes is money and Madison Ave know-how to get folks to “associate the goods with their source.”

  36. Gee, another dissent from Newman in which she got it wrong. Amazing.

    Does she ever write for the majority anymore without Rader on the panel?

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